Schlitterbahn executives charged with second-degree murder in Verruckt case

The Kansas Attorney General on Tuesday unsealed a new indictment in the Schlitterbahn case, this time charging Schlitterbahn co-owner Jeff Henry and Verruckt designer John Schooley with second-degree murder.

Also charged is Henry & Sons Construction Company, a contractor controlled by Henry.

The three defendants also face charges of aggravated endangerment of a child and aggravated battery.

The indictment accuses the three of “unlawfully, feloniously and recklessly” killing 10-year-old Caleb Schwab, who died riding Verruckt in Kansas City, Kan., in 2016.

These are more serious charges than those filed last Friday against the Schlitterbahn company and Tyler Austin Miles, a former director of operations for Schlitterbahn in Kansas City, Kan. They were charged with involuntary manslaughter, along with several counts of aggravated endangerment of a child, aggravated battery and interfering with law enforcement.

Second-degree murder in Kansas is defined as the “killing of a human being committed intentionally or unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” Penalties carry potential prison sentences ranging from nine years to 41 years.

The new set of allegations against Henry and Schooley are substantially the same as those released in the first indictment Friday. Both indictments accuse Henry and Schooley of designing Verruckt to impress television show producers while ignoring industry safety standards and concerns raised from others involved in building the water slide about safety issues.

Both indictments also say that several Verruckt riders suffered injuries since its opening in 2014, and that the company failed to maintain the slide.

Henry was arrested at his home Monday by U.S. Marshals in Texas, where Schlitterbahn has a water park on South Padre Island. As of Tuesday afternoon he was still in custody in Cameron County, the southernmost county in Texas.

Wyandotte County officials had no information Tuesday about when or how Henry will make an initial court appearance.

Schooley is believed to be out of the country working on another project in Asia.

Company officials were not immediately available to discuss the latest developments. But Schlitterbahn and its lawyers have pushed back against the central claims made by the indictments.

They criticized the indictments for using quotes pulled from a reality television show that featured the construction of Verruckt, and they have denied allegations that the company covered up evidence of injuries.

“During the civil matter, attorneys involved noted that we cooperated fully, provided thousands of documents, and that nothing was withheld or tampered with,” Winter Prosapio, Schlitterbahn spokeswoman, said in a statement Monday. “The secret Grand Jury never heard one word from us directly, nor were we allowed to provide contradictory evidence. And we have plenty.”

“In fact, the indictment presented is so full of false information that it has shocked the Kansas legal community,” the statement said.

Tom Bath and Tricia Bath, attorneys representing Tyler Miles, also rejected the indictment’s allegations.

“The suggestions that (Caleb’s) death was foreseeable to Tyler Miles, that, with this knowledge Tyler ‘avoided or delayed repairs,’ and that Tyler ‘had covered up similar incidents’ are simply not true,” their statement Monday said. “Not only had Tyler ridden the slide numerous times, but, as the State is aware, he had scheduled his wife, to ride it on the day of the accident. These are not the actions of someone who believed the ride to be dangerous.”

It’s exceedingly rare that a corporation, or the people running it, face criminal charges for designing a product that results in a customer’s death.

One contemporary example is an announcement by U.S. Attorney General Jeff Sessions last month, saying that the Justice Department will consider criminal penalties against drug manufacturers and distributors who have contributed to the opioid crisis. But no charges have been filed against drug companies.

But there are many companies whose products have led to customer deaths — automobile makers and tobacco companies, for example — whose executives have not faced criminal liability.

Suzanne Valdez, a clinical professor at the University of Kansas School of Law, said corporations and executives are usually held to account in civil courts, where penalties are monetary damages rather than prison time.

“It’s a product: Typically the remedy for this kind of situation is through the civil court where you can file a wrongful death case and you can get damages,” Valdez said. “Plus, (in criminal cases) it’s hard to prove this difficult standard of reckless conduct.”

Few aspects of the Schlitterbahn case have been typical. The case was presented by the Kansas Attorney General to a grand jury, which is rarely used in state courts in Kansas.

“The Constitution requires that an an Indictment be based upon legal evidence —not speculation or conjecture. This Indictment is based upon Grand Jury proceedings, which are conducted in secret,” lawyers for Miles said in a written statement. “While neither we nor the public have had an opportunity to see transcripts of Grand Jury witness testimony, the Indictment is littered with references to evidence that is not legal.”

Leading the Schlitterbahn investigation for the Kansas Attorney General’s Office has been Adam Zentner, an assistant attorney general who joined Derek Schmidt’s office in January 2016, just months before Caleb’s death.